*2 KAUFMAN, Before MANSFIELD OAKES, Judges. Circuit OAKES, Judge: Circuit Jackson, Nathan of Jackson v. Denno1 fame, now raises a difficult as important well jeopa claim of double rdy.2 appeal Judge In this Can- provision The double fifth amendment to the Constitution is application and felo- law” denial of nella’s corpus ny each of which was murder of habeas under U.S.C. writ former N.Y. under seq., petitioner seeks et § (2) 1044(1), (Penal Law Law §§ his conviction “blue-ribbon Penal overturn substantially 1909) repealed revised jury” [now law of now (Mc- 125.25(1), 749-aa, April 1938, ch. N.Y. N.Y.Penal §§ 1967)]. Consol.Laws, McKinney’s Consol.Laws, Kinney’s *3 Judiciary Law, 40, c. ju- objection by appellant4 1965), the (repealed 30, con- c. 749-aa on Without grounds. ry if also it returned was instructed stitutional remain on count it was to one verdict might agree much we with However was conviction silent other. York, original Fay in New the dissent murder, verdict and no 261, 1613, L.Ed. 67 S.Ct. 91 332 U.S. rendered as was (1947) decision), (5-4 did case 2043 by the special jury uphold The conviction was affirmed the York as not New Appeals equal protection York Court of without in of the or New violation 780, July 7, process opinion on 1961. 10 N.Y.2d Two at due clauses. recent A 621, 59. circuit on the 212 N.Y.S.2d 177 N.E.2d tacks this “blue-ribbon reargument jury” on was denied ex rel. motion failed. States 5, Mancusi, (2d 1961, 885, 10 N.Y.2d 223 Torres v. 427 F.2d 168 October 717, 1027, Cir.), remit denied, 952, 400 179 N.E.2d but the cert. 91 S. S.2d U.S. 252, (1970); the court was to show that Ct. 27 L.Ed.2d 259 titur amended rejected Deegan, ex F.2d had considered but Jackson’s States rel. Fein v. 410 (2d Cir.), arguments pertaining 13, denied, 22 cert. voluntari 395 U.S. the 816, 935, 1997, 10 89 ness of his confession. N.Y.2d S.Ct. 23 L.Ed.2d 450 521, 234. Cer are not the N.Y.S.2d 178 N.E.2d We about overrule both 221 949, Supreme previous panels denied, 82 S. and two tiorari was 368 Court 390, Vanderwyde also 7 L.Ed.2d 344 as were court. See v. Ct. 541, (S.D.N.Y.1953), stay execution, Denno, F.Supp. 82 7 L.Ed.2d 113 918 per Cir.), curiam, (2d motion for aff’d and a further 210 F.2d 105 766 reargument, 798, 646, 949, 11 227 N.Y.S. N.Y.2d 347 U.S. 74 S.Ct. 1025, L.Ed. 1096 2d 181 98 N.E.2d way comprehend To Thereafter collateral the attack claim, began. saga corpus petitioner’s odys- the full After defeats habeas (S.D. through F.Supp. sey court, the district 206 759 the courts must be recount- N.Y.1962), court, F.2d ed. Jackson convicted was the mur- (2d 1962), police case der Cir. the landmark on the officer street after Denno, robbery an armed Brooklyn Jackson hotel (1964) (5-4 County was sentenced death decision), held the New unconstitutional Judge Kings Barshay County No- on procedure jury permitting York the vember 1960. At the trial the pass of a confes voluntariness presented evidence, was with and the doing hearing it read.5 sion it, court on instructed both “common courts, misnomer, homicide is a since a through against states enforceable committing perpetrated course of amendment, Mary fourteenth Benton v. at common law. was land, 89 S.Ct. note infra. The Benton deci lawyer effect, was “a sion has trial counsel retroactive Ashe v. Swen Jackson’s years’ experience son, in the criminal n. trial ; courts, including (1970) on the bench. service North Carolina ” Denno, Pearce, Jackson v. appli L.Ed. thus is dissenting). J., (Clark, cable to this 2d 908 case. opinion accurately, this was law” time 5. More “Common used from majority. prevailing parties Mr. Jus- to time York four of open ardy.” so, to New 20 N.Y.2d at the Court left N.Y.S.2d give if so 231 N.E.2d at 730. The court went “to new trial Jackson say chooses,” on to Jackson’s case the charged bring permitted and directed to in a the State they single proof verdict as constituted a to furnish volun- alternative Appeals in a offense. The Court of then of Jackson’s confession held tariness judge. that, judge hearing because the first before trial said the could render a verdict elected The State only charge, say one cannot “[w]e disputed confes- use jury’s silence motion, On sion. theory acquitting der had the effect of consent, the New York Court of State’s theory Jackson of .... Since Appeals remittitur, amended its vacated instructed to render judgment and remanded the verdict, had no reason to consider Supreme Kings Court, County, for a *4 felony charge murder it found once People Jackson, new trial. v. N.Y.2d guilty premeditated the defendant of 257 N.Y.S.2d 205 N.E.2d 877 murder.” Id. at 285 N.Y.S.2d at (1965). 231 N.E.2d at 730. prosecution At the second trial Governor Rockefeller commuted the again pertaining introduced to evidence ap- imprisonment sentence to life before felony toas well pellant brought corpus peti- his habeas Appellant promptly objected on double pe- District, tion to the grounds Southern which jeopardy preserved his ob- tition was denied in course. jections due respects, objecting in all all to portions charge relating felony Appellant argues here, in line with the charge murder as well.6 The was essen- sugges- Appeals’ New York Court of own tially given at the first trial. original that, judge tion because the trial jury “instructed that the order jury The rub is that found Jack respective consideration guilty theories felony son on the second entirely up them,” least murder and was at premedi remained silent on “possible jury considered tated murder. He was accorded a hear acquitted ing murder first and before that same and sentenced theory single but under verdict death. This conviction and sentence charge express was not able to Jackson, were affirmed. 20 N. acquittal 452,285 an . . . .’’Id. at Y.2d 285 N.Y.S.2d 231 N.E.2d N.Y.S.2d at 231 N.E.2d at 730-731. 391 U.S. significantly, suggested More it is here 88 S.Ct. 20 L.Ed.2d 668 exposure jeopardy there was rejecting or to claim that he was subject Fortas, J., the “risk of conviction.” See to double dissenting Indiana, in Cichos v. affirming murder count and the convic 76, 80-81, unanimously, 17 L.Ed.2d 175 tion the New York Court Burger Appeals Chief Justice said that court . . “[t]his Georgia, the Court in Price directly has never decided whether 323, 326, Í757, 1759, 26 L. murder con (“The put Ed.2d 300 single ‘twice multiple stitute a offense of purposes jeopardy’ language jeop- fenses for the of double of the Constitution Black, agreeing Denno, tiee that a new trial was son 378 U.S. 84 S.Ct. required, portion dissented from that opinion permitting judge robbery 6. The $56.50 was the at pass separately saying voluntariness, on gunpoint of the room clerk of the I.C.U. fragmentizing process that “such a vio- Brooklyn. Hotel The murder was of spirit pro- lates the constitutional Ramos, happened Patrolman William who against jeopardy, tection even' if onto the scene and was killed an ex- infringe technically.” change gunfire. it does not Jack- Indiana penalties, relied potential, e., the risk i. relates to a thus here— practice York’s time will second an accused —similar instructing to return ver- the ‘same offense’ convicted charges. U. tried”). dict one of initially which was Interestingly, 79-80, at 87 S.Ct. 271. S. Appellant relies on Green Unit Black, wrote Green Mr. Justice who ed opin- opinion, in the Court’s concurred that, held which at ion in Cichos. 385 U.S. degree mur for second awhen conviction degree aside, for first set der is retrial holding Georgia, prohibited. 90 S. This 398 U.S. Price one, grounds: that the ver denied on two based Ct. degree guilty power second an accused dict of of a state acquittal,” “implicit after an earlier ver- for murder of first the lesser-included offense dict on murder;7 two, voluntary manslaughter that “the set had been returning any ex follow- was dismissed press aside The Court for trial error. saying, however, Green, and without verdict on ed though] sup- (emphasis [even consent Green’s given opportunity to return it was plied) : full extraordinary circum verdict and continuing jeopardy principle prevented appeared stances necessarily applicable to case. doing so.” 78 S. sought re- and obtained the Petitioner *5 (emphasis supplied). Appel at 225 Ct. his conviction vol- versal of initial that, argues conviction lant even his ap- manslaughter by taking untary an murder were an aspect peal. Accordingly, the no of “implicit acquittal” the jeopardy prevented his bar on jury murder, his first was dis However, that the crime. retrial for having his consent after missed without verdict, it to the limited as first given opportunity to been a “full return required offense, that included lesser that a verdict” on to the be limited that lesser retrial appearing prevented circumstances inescapa- a result flows offense. Such doing course, This, it from is the so. bly emphasis the Constitution’s language Green, Mr. Black Justice on risk conviction the Consti- utilized Justice dis Mr. Fortas explication prior decisions tution’s Indiana, supra. to Cichos v. The sent of this Court. majority in Cichos dismissed the writ as granted improvidently the where Indi undoubtedly petitioner was While permitted ana on courts had retrial exposed “a risk for felo of conviction” involuntary manslaughter counts of trial, ny on his is first the fact reckless homicide conviction of the that degree convicted of form first he was at first trial on latter was set aside premeditated—and the murder — appeal. question we have is retrial for whether degree Cichos, of first case, crime murder is bar unlike our involved the red. sense can be said that felo same verdict on the retrial as on the first ny pointed is a lesser-included offense. trial. The Court out that under “prior Neither the Indiana decisions” of Su two law the crimes involved preme “proof nor elements,” Court the Constitution’s lan guage help particularly us in determin- 87 S.Ct. but with different senting Technically, jury Green v. United silence is not equivocal acquittal; 82 L.Ed. is an in- an ability jury agree unanimously Frankfurter, J., on a verdict. dis- jury judge’s “continuing its jeopardy” instructions denied ing whether opportunity” This on each count? “full crime to the about refers Court talks arguable, rather event a nar- degree more murder or is of first hang light peg cloth on particular rowly form limited especially true when This is calls decision. murder New holding, Price’s understand we meditated S.Ct. Price, explanatory footnote jeopardy error was not harmless second n. supra, at 329 Green, though, convic even unlike saying 1761, helps some, perhaps, us tion on the second trial was [Kepner Kepner that “[a]fter on our Court relied lesser offense. States, 195 Hetenyi rel. own United States ex (1904)] Green, the con- L.Ed. (2d 1965), Wilkins, F.2d Cir. tinuing appears jeopardy principle Hetenyi; Mancusi v. e.g., amalgam on an rest interests — finality, society, lack of fairness pointing out among waiver, others.” and limited reaching may compromised in however, opinion, rather The Court’s charge. on verdict the lesser Here opaquely York Court cites conceivably argued could case, Appeals opinion in our retrial, charges with the faced two Jackson, N.Y.S.2d 20 N.Y.2d degree murder, compromised in of first footnote 231 N.E.2d finding of one. quote, has con- 5 in the Court “[T]his argument jeopardy Carrying sistently petitioner’s refused to rule that step further, acquit- Jorn, for an offense continues after States express tal, acquittal whether party, implied on a lesser conviction not cited us either held that included offense when the attached when given impaneled that, opportunity a full to return ver- was the fifth while greater Price, charge.” woodenly amendment dict to be mechanically supra, construed, reprosecution 398 U.S. at at 1761. *6 citation, by permitted preceded after a mistrial would not be Does the Jackson “See,” where, consent, a trial without mean that defendant’s New called,” “continuing jeopardy” jeopardy theory 8. The double it must “if be was by precisely advanced Mr. in in this Justice Holmes his and was connection again gem, Kepner States, in to his dissent that he referred own 195 100, 134-136, 797, tyranny U.S. 24 S.Ct. 49 Id. Holmes’ labels.” “[t]he perhaps support L.Ed. 114 did in There he rather view leading receive subject devastatingly criticized so-called law review article on the theory may by many comporting “waiver” to “with be adhered as what courts, States, satisfying analysis see Trono v. United 199 the double most jeopardy protection Mayers general.” 521, 121, 50 in U.S. 26 S.Ct. L.Ed. 292 having (1905), Yarbrough, fatal flaw of in- Bis Trials & Vexari: New consistency Prosecutions, Harv.L. with retrial mis- and Successive 74 trial, Perez, as in United States v. 22 vindi- Bev. 7 Holmes was (9 Wheat.) by expressly (1824) Green, supra, U.S. 6 L.Ed. 165 cated (hung jury). “theory theory, rejected of continu- U.S. the “waiver” ing jeopardy outwardly 191-198, has been ad- L.Ed.2d never at 78 S.Ct. by concept, phrase, hered to other Justice of this his if not turn of his Court,” according adopted by a to Green v. unanimous Court 326-327, 184, 197, Georgia, 355 U.S. 78 S.Ct. U.S. Price 329, (footnote (1957) S.Ct. omitted), therein, at but Justice Cardozo hinted his note But support against Connecticut, in Palko v. 90 S.Ct. cautions 319, 323, tyranny 151, 82 label rede- L.Ed. of even a Holmes Mary- fining “continuing overruled, jeopardy” 288 land, in terms Benton v. competing text of interests. See phrase opinion, with the at 1045. infra sure). corpus, (on to be judge reversal habeas a mistrial a declared question fifth amend- con- whether the to Our prosecution witnesses to enable counts; attorneys. at retrial on both ment forbids 400 U.S. their sult with argued holding, retrial on the cannot In this be at be Court, count would impermissible. to nor Jom neither adds the test of United States reiterated problem Wheat.) from the we face: Perez, subtracts (9 being “exposed jeopardy” mis- in Mr. a that before 6 L.Ed. 165 test, reprosecu- sole may Fortas’ words9 is the Justice declared without exposure may jeopardy, being be no further there as double tion barred necessity degree murder of first the same a manifest be] “there [must declaring mistrial], (premeditated cast two its forms a for the act [of justice felony) other- when there is a conviction public would ends of re- also Wade (premeditated) one a followed defeated.” wise be 834, 93 Hunter, versal? (no (1949) L.Ed. 974 analyze attempt An law when court-martial bar to second per- York from an historical der discharged due to tactical court-martial spective to this case determine whether might field). necessity Petitioner Cickos than to Green is closer to argue no “manifest there was here Price, perhaps, al- while essential necessity” con- far he was least as together fruitful, attempt an but such cerned, judge in each of may deciding helpful whether charge on permitting the trials erred continuing “one there is here involved go jury, counts to both jeopardy.” attempted prosecutor should analysis Our historical commences Blackstone, point made who charge, regardless proof of whether that, while the is ex- element premeditation thin. press when one “with sedate deliberate design” another, Jom involved retrial mind and formed kills court had declared supplied implication after the malice is killing however, design Here, there was “if intends mistrial. appeal felony.”10 do At an another common conviction followed liberately, Indiana, and with intent do Cichos (For strike, mischief, a horse used to cooly among discharging gun tas, J., dissenting). Blackstone, people *199- 4 W. Commentaries multitude .... many is worth Also eases where no malice 200. Blackstone’s formulation imply length: expressed it, as, quoting the law will *7 wilfully poisons Express one, a where man when with a another: is mind formed de- a sedate deliberate and such deliberate act law particular malice, though sign, kill another: formed sumes doth which by enmity design proved . id evidenced external circum- can be . . . manner, discovering like if inward inten- one kills an officer of stances laying ; wait, justice, criminal, tion either civil or in the as antecedent duty, menaces, grudges, execution his or of his former and concerted bodily endeavoring do him some harm. assistants to conserve schemes to peace, private person or in the case deliberate endeavor- This takes ing duelling Also, upon suppress affray apprehend . if even or . . . knowing authority felon, provocation a or in- sudden one beats another interposes, with and so that tention which he in a cruel unusual manner imply malice, though dies, killer law will and the did intend his he he not guilty death, yet guilty And is ex- shall be of murder. murder if felony, press to do intends another and un- . malice. . Neither shall . man, designedly who kills hills a also mur- he be less crime Thus, consequence der. at A. and one shoots a wilful another such enemy [emphasis original], him as be an misses act shows B., going murder, general; kills because all mankind de- and murder constitute offenses was meditated criminal number of law the small, single (despite the court’s but a based offense was each offense deciding that it underlying rather statement was factual transaction barring issue). People Jackson, supra, N. legal theory, efforts v. thus than a 18-19, until The Y.2d at prosecutions, least 285 N.Y.S.2d at second King (distinguishing Abbott, 2 Leach 231 N.E.2d 730-731 & v. Vandercomb case). (Ex. 1796), Eng.Rep. Green as a and two-offense charge only simple could an indictment problem with this historical anal- Note, Statutory Implemen- felony. See ysis, however, truly is that there are Jeopardy Clauses: of Double tation evidentiary requirements distinct nec- Constitutional a Moribund New Life for essary prove premeditated murder Guarantee, Yale 341-344 L.J. murder under statute. (1956). until Apparently it was Despite requirements those different country that murder was 1794 in this justi- particular the facts in this degrees, and even divided then, into statute either, fied a at least under statute, enacted in the first such the broad reach of the Penal former Pennsylvania, April 22, courts, as construed the New York “ was defined as . and no evidence admissible on one murder, perpetrated all which shall be Thus, was inadmissible on the other. wait, by lying poison, means of or though engaged gun- even fight by any wilful, kind deliberate or other leaving police with a officer after premeditated killing, shall or which hotel, fight surely which could perpetration, or at- be committed any great degree not have involved any arson, rape, tempt perpetrate, rob- “premeditation” “deliberation,” ” burglary. bery 4 Journal or . . . while under the law of there New York 1794), (Pa. quoted in Senate should thought “some reflection and some Degree Keedy, Mur- A Problem of First precedes blow,” People States, 99 U.Pa. der: Fisher United v. Hawkins, 408, 411, 109 N.Y. L.Rev. 267 (1888) (quoting approval In common indictment for law judge’s instruction), the time York, der in New either necessary necessary pre- to form the provable. thought may very meditation and “of Enoch, (N.Y.Ct. for Wend. 159. People Harris, short duration.” 1834); Syracuse Correction of Errors 70, 75, 102 N.E. sure, (1960). To be L.Rev. “[Fjelony murder must occur while recog- Appeals a unanimous Court of actor or one more of his confederates concept felony murder nized that the engaged securing plunder or in degree rests on in the first doing something immediately connected legal intent.” fiction transferred “the People underlying ; with the crime . Wood, 8 N.Y.2d escape may, [and] certain unities 736, 738 167 N.E.2d N.Y.S.2d time, manner, place, abe matter statute under New York immediately so connected with the convicted, appellant former part crime as to be of its commission 1044, defined first N.Y.Penal Law § ” People Walsh, 262 N.Y. including degree murder, 186 N.E. along law the Blackstonian common *8 (citations omitted). See for lines. This statute was construed Marwig, 227 N.Y. in the instant first time (1919)11 Appeals, Here, York Court of as New Jackson had robbed a court, mean, effect, trial in just gunfight. hotel before the previous intent, which the felonious 1 1. New York now defines murder differ ently law one to the other from transfers former § 1044 but still classi felony fies murder as a subdivision of the (emphasis supplied). Id. at *198-201 same section which includes murder “with proper and Felony premeditated mur- a indictment a verdict on murder and historically even of undue vexation to one offense the avoidance der were original facts, by a retrial on both they proof of different defendant if involved considering g., charges, opportunity what set of facts —e. those in Jack- but one predica- might had to avoid the for convic- the defendant suffice son’s case— action, appropriate aid as well as does not either It ment tion of offense. already jeopardy resolving opportunity is- we in State’s us acquit- however, sue, of Petitioner was not know that mentioned. use murder; felony apparently of special on first trial avail- ted a verdict was murdering police of See trial court. he was convicted to the able officer, 438; Proof premeditated sure. N.Y.Code former Crim.Proc. § robbery Syracuse of admissible Nor of the was L.Rev. charge proof help had know on either was does it us to —no respect inadmis- potential punishment not one was the same count was proving purposes other. premeditated for of sible for slightly dif- to each were Law The defenses § former N.Y.Penal since 1963) conceded, ferent, there (Penal of added must 1045-a Law (McKin- evi- there is no indication that 125.35 N.Y.Penal Law [now § dentiary petitioner re- prejudice to as a ney 1967)], life could recommend charges, imprisonment only of retrial on both sult for undisputed 1044(2)] could have been for and not [§ charge of 1044(1)]. retried on a L. E. Marks and [§ York, only. der the State could have Paperno, While New Criminal Law narrowing asked instructions ch. § verdict, petitioner special had an even have, short, sui a case that We equal opportunity at trial and the first generis, any Supreme not controlled objection to to the went facts,12 capable on Court case charge portion per- of court’s simple his- resolution either on an mitting to cease deliberations logical dis- torical13 or basis. Without found him of the two teachings regarding history counts. While cases, point to the we come where possible carried with it weigh we must on a scale the com- fine imprisonment, recommendation life peting public peti- part interests of the deliberations was not leading in- tioner. We must strike balance be- to conviction the first obtaining society tween fairness stance. Petitioner stands convicted 125.25(1) Simpson Florida, intent.” § N.Y.Penal 1967). (McKinney (1971) (per But see Wis.Crim. robbery Code, (reproseeution curiam) 940.03 Wis.Stat.Ann. defining felony acquittal as murder barred tlie store customer degree. Ill.Crim.Code, robbery manager third See also of store —col- (3) (Smitli- 9-l(a) Swenson, estoppel), or Ashe v. Ill.Ann.Stat. lateral §§ 1972). Hurd (1970) (collateral estoppel retrial bars Tennessee, Duncan player robbery poker de- of one where (6-3 decision), acquitted previously fendant of rob- aid, is of little there the since defendant’s room). bing poker player in another same acquittal in an resulted actual improper language an indictment with a the double second “proper one; dismissing help trial on a clause us. Unlike does speak majority Hampshire’s, does not writ referred rather inex- clause plicably jeopardy questions acquittal: to the double terms of tried, being subject shall be liable to be “so interrelated with rules of No acquittal, pleading peculiar for the crime criminal State Tennessee, constitutionality offense. ,” id., pt. which is not N.H.Const. art. at issue *9 hearing not the case. warrant Nor 1050 Jeopardy killing the heart Double malicious and the willful Clause, applicable following perpetration state the which police officer Mary robbery, proceedings, once, but Benton v. criminal the 784, 2056, land, L. 89 23 twice, 395 one instance U.S. albeit the prohibition thought (1969),1 lies Ed.2d reflection and some “some against defendant, on blow”, People reprosecution of a

precede[d] Haw- v. the kins, supra, 411, facts, offense. N.E. the same for the N.Y. at same law, 373, by carrying lan York the out Under settled New and in the other guage “immediately case2 the indictment connected of the an act Walsh, support for People underlying convictions was sufficient crime.” v. premeditated murder, supra, 148, N.Y.Penal 186 N.E. at 262 N.Y. felony murder, 1044(1), and public appears Fairness 1044(2). Lytton, People Penal v. Law § that a valid indictment to us to demand ; (1931) 257 N.Y. 178 N.E. 290 in a there has been end verdict where Osmond, 80, 84, v. 138 N.Y. no conviction of a lesser-included offense when At time (Green Price), and mistrial virtue no sworn, jury at trial was sponte sua with of the court’s action jeopardy for, placed he was and (Jorn), and consent out defendant’s against, necessarily required to defend for reversal con where cause under both of first forms co-equal re viction of the offense is York statute. United States New error admission of evi versible 470, 479, Jorn, here, dence, where, least as (1971); Newman L.Ed.2d 543 inadmissible) (or evidence admissible States, U.S.App.D.C. charged (cf. proof as either offense 410 F.2d Cichos). Nor is there substantial petitioner. de unfairness Unlike the doubt, therefore, There can be Jorn, fendant event Jackson in tried was twice State subject to retrial on would been felony mur the crime of count, un and der, 1044(2), N.Y.Penal based Law § Price, Green and like the defendants the same evidence. did retrial on count subject greater penalty or him to a question to be resolved is whether greater stigma embarrassment, ex Jackson’s successful collateral attack pense or ordeal. conviction unquestionably allowed the State Judgment affirmed. on that judicially-created exception Judge MANSFIELD, (concur- Circuit Clause, Jeopardy Double United States ring) : Ball, result, (1896); I concur more L.Ed. Forman grounds expressed limited than those majority. (1960); North Caro- Maryland 1. Benton v. been has held to Coun- ou about June ty wilfully, feloniously Kings, have full retroactive effect. See Ashe Swenson, aforethought, n. J. shot William Ramos, Jr., 25 known as William revolver, Ramos, Jr., there- with a 2. The indictment read as follows: divers wounds Wil- inflicted Jury County “The Grand Ramos, Jr., liam also known J. Kings, by indictment, accuse Ramos, Jr., William and thereafter defendant of the crime of MURDER IN on or June said William about DEGREE, THE FIRST committed as Ramos, Jr., also known William J. follows: Jr., Ramos, of said died wounds.” defendants, acting “The in concert aiding abetting other, each

1051 505, 711, Pearce, 446, 89 N.Y.2d lina 395 260 N.Y.S.2d 208 N.E. v. 2072, 2d L.Ed.2d 656 177 where defendant had S.Ct. 23 felony premeditated been convicted murder allowed acquitted charge.3 felony but I that His con murder believe murder. by eventually of this viction was circumstances reversed unusual Court en banc. United States ex rel. it did. (2d Cir.), Denno, v. 313 F.2d Bloeth 364 Normally defendant retrial of a 978, 1112, 372 83 S.Ct. successfully appealed his con- has who retrial, (1963). On only same “for that viction allowed premeditated Bloeth convicted of by” set aside offense has been [which] felony murder and The Court appeal. v. Forman defendant’s felony Appeals then reversed the mur States, 416, 425, 80 United der conviction in a deci memorandum ex- For S.Ct. 4 L.Ed.2d 412.4 ostensibly ground sion, ample, indicted has been defendant who acquittal murder first degree first murder but found for reprosecution that of trial barred offense, such as of a lesser included despite appeal fense successful voluntary second murder man- murder conviction. slaughter, may suc- retried after a be Howard, People A.D.2d See also v. 27 cessful attack his conviction 796, (4th Dept. 279 80 79, N.Y.S.2d the lesser included offense 1967). guilty. was found Green v. 221, hand, 2 L. 355 78 also re- the other there is On Georgia, (1957); spectable authority 199 Price 398 Ed.2d v. proposition 90 26 the acts that at the time of charged premeditated murder and here forms murder were different majority recognizes, opinion As degree murder crime, pre- support theory there for the 1044. as defined in N.Y.Penal Law § meditated murder Judge analyzed by Car- This was Chief separate are offenses two and distinct People precision in with his usual dozo under New York elements of law. Lytton, 314-315, 178 N.Y. v. differ, each and a time of as follows: N.E. permitted recom- trials was A.D.2d Dept. meditated supported facts, People dicts der. convicted mend life person (1966); 275 N.Y.S.2d The two-offense 1971), 1045-a, (a convicted of imprisonment murder) by lesser 319 N.Y.S.2d felony murder, cf. murder and decisions but not Leonti, People v. included form of on the same set People theory 18 N.Y.2d upholding ver- second-degree Weisser, the case Bloeth, N.Y.Penal is further defendant N.E.2d (4th felony. proved then tated It act was done engaged done with People felonious intent “Homicide, The malice or ‘without ^[221] may fall under subdivision design by showing v. page evidence of proved Nichols, we deliberate to kill. commission said, state by Enoch, supra, showing then and is not of mind depraved The case (§ premedi- act was another and of may Wend. 1044). mind’ there will be applies error,” Coke, Ball whether doctrine States banc), appeal 1968) (en (2d conviction is voided direct Cir. F.2d Tateo, reprosecution attack. United collateral States therefore 1587, 12 appellate error based on such reversal L.Ed.2d 448 Ewell, justified. United States v. ago long It was decided that “freedom disproportionate would reward for a *11 197; People premeditated 27 Am.Dec. of murder and, accord- Nichols, supra. instructions, fall The case will then ance the with court’s made finding In the one case under subdivision he issue whether charg single guilty as in the other a crime is murder. To independent say the like ed, jury the that the latter considered the premeditated issue, intent acquitted be deliberate and ing much less that it Jackson solely purpose felony murder, pure specu- established the would be characterizing the lation. pur charged, mind or crime so the evil Unlike the cases situation other killing. People pose inherent the holding Jeopardy that the Double Clause any supra. Enoch, could be If there barred retrial of a count had not which of the in doubt the form this, about subject expressed jury been the verdict, of an dispel dictment be sufficient to would g., States, su- e. Green v. there is it. The rule is settled pra, case failure charge to in an indictment no need to ony fel- render verdict on the wrought in the com the homicide was equated murder cannot with be felony. It suffices of another mission charge. implied acquittal Nor of that common-law form to state can be attributed to circumstances be- ‘willfully, felon acted defendant yond control of Jackson his coun- aforethought.’ iously, with sel, lawyer experience extensive with supra; People Nichols, People v. practice. in criminal trial con- On the 21 Osmond, Giblin, N.Y. trary, record his counsel reveals that 757; People v. 1062, 4 L.R.A. go have to was content to the case This would 33 N.E. 138 N.Y. by the jury on the basis formulated independent do if the never court. changing iden conceivedof as were con far as Jackson’s counsel As merely tity instead of the crime guilty finding Jackson cerned a verdict culpabil characterizing degree of premeditated either ity imputed to the killer.” to be client, since been fatal to his would have Turning present the indict- charge, in which of either conviction separate ment Jackson does City killing of a volved the premeditated counts with probably resulted have would policeman, alleges simp- (2) felony It reveals The record sentence. a death “wilfully, ly in that Jackson one count away kept he therefore aforethought feloniously of malice ver suggestion be two should that there Ramos, shot Jr. William J. cases, dicts, in some has done been thereby revolver, inflicted with supra; People v. Leonti, People v. see Ramos, J. divers wounds William strategy was supra. His entire Bloeth, and on or and thereafter . Jr. find should persuade that it William J. about Ramos, said June degree of hom guilty of a lesser said died of Jr. imprison would call icide, one which judge presided at who wounds”. penalty. for the death than rather ment taking trial, the view that Jackson’s al strategy, In accordance felony murder murder and meditated de ample opportunity though had equal same forms were but two felony murder disposition amand could instructed the crime, charge, considered or not whether mur other, or the of one convict Jackson offense any exception guilty der, not take he did found Jackson not both. imprisonment, death, life Indeed, recommended Jackson was sentenced 1045-a, the conviction Penal Law later commuted a sentence that was hardly could imprisonment Rocke life Governor degree of jury, for a lesser found as one if it had classified feller. Since felony murder, homicide. could instruction, court’s nor did he make

request for two verdicts. my strategy view at the trial amounted consent

procedure judge, followed invoking precluded him from Jeopardy upon a retrial

Double Clause premeditated mur

after conviction for *12 essentially the

der. His consent was given upon

same as that the declaration discharge

of a mistrial or the of a verdict,

prior represent both of which

exceptions application con guarantee against jeo

stitutional

pardy. Tateo, United States v. L.Ed.2d 448

(1964); Pappas, United States v. (3d denied Cir.),

F.2d cert. States, 404 sub nom. Mischlich v. United (1971); Gregory States, United

U.S.App.D.C. 317, 410 F.2d (D.C.Cir.), denied,

n. cert. (1969); F.2d Vaccaro v. United (5th 1966); States Cir. Cir.),

Burrell, (7th F.2d 937, 84 S.Ct. (1963); Ban Raslich 1959). (6th

nan, 273 F.2d Cir. Individually HAMMOND,

Beulah similarly behalf of all others situated, Appellant, POWELL, of Richland

Frank Sheriff al., County, Carolina, South et Appellees.

No. 72-1033. Appeals, States Court of Fourth Circuit.

Argued May

Decided June